Whether the employer's failure to purchase maternity insurance is a violation of labor contract law

It is illegal for an employer to fail to purchase maternity insurance. Social insurance is the state legal, from the date of employment should be established, whether or not signed labor contract, the main employer does not handle is illegal.

Legal analysis

Maternity insurance is part of social insurance, generally paid by the unit, individuals do not pay. As for the situation of not paying maternity insurance for employees, generally non-local employees, the local social security policy stipulates that the enterprise does not pay maternity insurance for them, and the other must be paid. Enterprises do not pay maternity insurance for employees. The employee can file a complaint with the Labor Security Bureau of the enterprise or apply for labor arbitration, and ask the enterprise to pay the maternity insurance for the employee. The maternity allowance during a female employee's maternity leave shall be paid by the Maternity Insurance Fund in accordance with the standard of the employer's average monthly wage of the employees in the previous year for those who have participated in maternity insurance; for those who have not participated in maternity insurance, it shall be paid by the employer in accordance with the standard of the female employee's wage prior to her maternity leave. The medical expenses of a female worker who gives birth or has a miscarriage shall be paid by the Maternity Insurance Fund in accordance with the items and standards stipulated in the Maternity Insurance for those who have participated in the Maternity Insurance; for those who have not participated in the Maternity Insurance, they shall be paid by the employing unit." In other words, maternity insurance benefits include maternity medical expenses and maternity allowance. It is precisely because the company does not have maternity insurance for its employees that it is unable to obtain the appropriate expenses, and it is also determined that the company has to pay the medical expenses and maternity allowance to them according to the standard. Maternity Allowance, Maternity Medical Expenses, Family Planning Surgical Expenses and Other Expenses; Maternity Allowance: Maternity Allowance is the salary of the female worker during her maternity leave, and if the Maternity Allowance is lower than the standard of her own salary, the difference will be made up by the enterprise. The maternity allowance is calculated by dividing the female worker's contribution base for the month in which she gives birth by 30 and multiplying it by the number of days of maternity leave. Employees who have participated in maternity insurance for a total of one year and are still insured at the time of childbirth (miscarriage) shall be entitled to maternity insurance benefits in accordance with the relevant provisions. The standard for granting maternity allowance for maternity insurance treatment is based on the average monthly salary of the employees of the employer where the employee works in the previous year, and is calculated according to the prescribed leave period.

Legal Basis

Article 100 of the Labor Law of the People's Republic of China (PRC) If an employer fails to pay the social insurance premiums without any reason, the labor administrative department shall order the employer to pay the premiums by a certain period of time; and in case of failure to pay the premiums after the expiration of the period of time, it may impose a late payment fee.

Article 53 of the Law of the People's Republic of China on Social Insurance Article 53 Employees shall participate in maternity insurance, and the employer shall pay maternity insurance premiums in accordance with the provisions of the State, and employees shall not pay maternity insurance premiums.